Other Voices: Improving Indigent Defense

May 31, 2004|By PHILLIP HAMILTON

When the 2004 General Assembly passed its new budget bill, it established the funding priorities for the state for the next two years. One priority is the allocation of funds for several measures designed to improve the indigent defense system for legal counsel to the poor.

Over the past 30 years there have been 34 separate reports detailing extensive problems with Virginia's indigent defense system. The most recent report was based on an exhaustive review in 13 of Virginia's judicial circuits by the nationally respected Spangenberg Group. This January 2004 study found that "Virginia's indigent defense system fails to adequately protect the rights of poor people accused of committing crimes." The report also suggested several steps Virginia should take to address the identified problems.

As a result, the budget included four initiatives to improve the judicial system and effect more appropriate representation of the accused:

* Thirty-two additional assistant public defenders to address large caseload issues in existing public defender offices;

* The creation of the Indigent Defense Commission to replace the current Public Defender Commission to develop standards for indigent defense and provide oversight for both court-appointed counsel and public defenders;

* The creation of seven new judgeships and additional district court staff; and

* The establishment of four new public defender offices in Arlington, Chesapeake, Hampton and Newport News.

According to a May 20 article in the Daily Press, the last initiative seems to have met with displeasure by some lawyers in the local legal community. Surprise, surprise! Private lawyers complaining because the creation of these public defenders offices might cause their taxpayer-funded government subsidy to be reduced.

In 2003, a local lawyer referred to court-appointed work for indigent defendants as a "meal ticket." In the most recent Daily Press article, another local lawyer made the following comment: "For a lot of guys in the city, it's their primary bread and butter." Another lawyer "expects to have to reorient his practice to make up for the loss of court-appointed cases."

Never once did these lawyers mention the rights of indigent defendants as their focus or priority. This too should come as no surprise, as the Spangenberg report quoted one local lawyer as being candid and "admitting that with a retained client, he spends substantially more time looking for an issue that will benefit the client, while in a court-appointed case he spends as little time as possible looking for an issue that will dispose of the case. He added, 'If we want to make a living we have to get rid of the case as quickly as possible.'"

These lawyers fail to acknowledge that Virginia law mandates that the existing Public Defender Commission annually recommend localities where public defender offices should be created. Pursuant to its statutory mandate, this commission has, for the past two years in its annual reports to the General Assembly, identified both Hampton and Newport News as localities where public defender offices should be established.

These lawyers fail to mention that currently more than 75 percent of the state's funding for indigent defense goes to private court-appointed lawyers while these court-appointed lawyers account for only 25 percent of the indigent defense work in Virginia. It is no wonder that the current public defender offices have been so under-funded. Private lawyers are a powerful lobby that continues to argue for their court-appointed government subsidy program while the majority of indigent defense cases are being handled by public attorneys.

These lawyers fail to mention that, even with the nation's lowest fees paid to court-appointed lawyers, the state expenditures for these lawyers have increased by 77 percent over the past six years. During the same time period, crime rates in Virginia have leveled off and population has only grown 8 percent.

These lawyers fail to mention that the General Assembly just raised taxes to pay for the core services of government. Indigent defense is a constitutionally mandated core service of government. For most taxpayers, subsidizing the legal offices of private lawyers is not a core service of state government. Only time will tell if Gov. Mark Warner and those who supported the $1.4 billion tax increase agree.

These lawyers fail to mention that the Budget Conference Report is legislation like any other legislative conference report that gets voted on in the General Assembly. It is not some "backdoor" document. Like other bills in conference, the differences between the House and Senate versions of the budget have always been subject to negotiation during the legislative process. The House budget funded the creation of the additional public defender offices while the Senate budget funded the Indigent Defense Commission, the additional public defender positions, and the additional judgeships and district court staff.

Finally, references to court-appointed work as one's "meal ticket" or "primary bread and butter" underscore a serious issue in addressing the constitutional rights of indigent defendants. Thankfully, there are many private and public attorneys in our society who are willing to provide these important legal services without focusing on the public subsidy they receive to maintain a private legal practice.

Hamilton, a Republican from Newport News, is a member of the House of Delegates. *